Komagata Maru – reflections on immigration policy

May 23 will be the 100th anniversary of the arrival of the  Komagata Maru in Vancouver. Its arrival and the efforts of its passengers to remain in Canada were one of the most emotional events in Canadian immigration history. In the next few weeks leading up to  the anniversary, I will write about the incident and consider what changes have been made to Canadian immigration policy since then.

Humanity has been migrating through the ages. As populations levels increase, with more competition for limited resources,. people have moved to seek better opportunities. The same pressures motivate migration today. A global industrial economy creates demand for workers. Capitalism results in a desire by business to decrease labour costs. Governments attempt to balance competing interests.

Other human factors give rise to migration, such as religion, race and ethnicity, resulting in wars and other conflicts. There are many examples in recent centuries. To name only a few, land clearances in Scotland following a political uprising in the mid-18th century displaced tens of thousands of Scots. A million Irish migrated as a result of the famine of the 1840s. Partition of India in 1947 displaced about 14 million people.

In the past year complaints by unions and other workers about displacement by temporary foreign workers have filled the news. The government is creating an Express Entry program to assist business in quickly finding qualified permanent workers. All of this is playing out in a global economy hit by a recession since 2008, with fears that a slowdown in the Chinese economy will exaggerate the problems.

Similar headlines were written over a century ago. A global depression in 1907 created conflict in British Columbia, with unions demanding a prohibition against cheaper imported labour by businesses. Racial tension and prejudice arose as most of the imported labour was coming from China, Japan and India.

The B.C. legislature passed laws to restrict Asian immigration. Most of those laws were disallowed by the federal government, under a constitutional provision that still exists. Previously, B.C.'s Lieutenant Governor, James Dunsmuir, refused to give royal assent to one Act, after which he, as owner of major mining interests in B.C., signed a contract to import foreign miners. The federal government had started restricting Chinese immigration in 1885 by imposing a head tax on Chinese migrants. Despite increasing the fee twice by 1903, migration continued.

Businesses argued against restrictions. The Canadian Pacific Railway, which ran a Pacific steamship service, relied upon migration for that service. It had been promoting migration from India. Following race riots in Vancouver in September, 1907, the federal government reached an agreement with Japan to limit emigration to Canada. The government sought a way to limit Indian migration without overtly offending British Indian interests in controlling Indian nationalism.

A new Immigration Act was passed in 1906. The 1906 Act allowed the government more flexibility in controlling migration. In January, 1908, the government enacted a regulation that, where in the opinion of the Interior Minister the condition of the labour market made it desirable, immigrants would be prohibited from landing or coming into Canada unless they came from the country of their birth, or citizenship, by a continuous journey and on through tickets purchased before leaving the country of their birth, or citizenship. It also passed a rule to prevent migration of unemployed poor from Britain.

The CPR challenged the regulation as it effectively eliminated migration from India. One of its ships, the SS Monteagle, arrived in Victoria in March, 1908, with 183 Indian immigrants. The migrants were first subject to an education test under a B.C. Immigration Act. About 31 failed the test, resulting in an order for their imprisonment. On March 13 B.C. Supreme Court Justice Morrison set aside the convictions, by finding the B.C. law unlawful, as it was contrary to the paramount federal Immigration Act.

Under the federal Immigration Act, twenty five were excluded on medical grounds, the rest under the continuous journey order. The CPR contested the exclusions, with the lead applicant named Behari Lal. On March 24, Justice Clement ruled the order invalid, as the Immigration Act did not give power to the government to delegate authority to the Interior Minister to determine prohibited classes.

Within three days the government passed a new continuous journey order, without reference to the Interior Minister. It also introduced an amendment to the Immigration Act to expressly authorize a continuous journey regulation, that was assented into law on April 10. It rewrote the continuous journey order again in May. In June the government passed another rule requiring “Asiatic immigrants” to possess $200, creating a further barrier against Indian migration.

The CPR made no further attempt to challenge the exclusionary rules. It succumbed to pressure and eliminated any direct passage or through ticketing from India. The government set up entry points along the U.S. border in 1908 to control inland movement. Increasing migration prompted the government to introduce a new Immigration Act that was approved by Parliament in May, 1910. The 1910 Act would remain in effect until 1953. Within a week, cabinet reenacted the continuous journey and $200 fee requirement rules under the new Act.

The stage was set for further challenges to the law. Those would come from an Indian political activist in 1911, the arrival of another ship with Indian migrants at Victoria in October, 1913, and with the Komagata Maru's arrival. They will be dealt with in next weeks installment.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Government continues juggling with temporary workers

The political conflict over the temporary foreign worker program came to a head this past week with the announcement by Employment Minister Jason Kenney last Thursday that the government was suspending the issuance of labour market opinions related to the food services sector. Under the moratorium Employment and Social Development Canada (ESDC) will not process any new or pending labour market opinion applications for that sector. Labour market opinions, known as LMOs, are decisions by ESDC that an employer has given a genuine job offer and that hiring a foreign worker would have a neutral or positive effect on the labour market opinion in Canada.

Critics have complained about the temporary foreign worker program for years. The program is purportedly intended as a last resort for employers to find workers when they have been unable to find qualified workers in Canada. In the past decade, and particularly under the present government, the foreign worker program has greatly expanded. There are currently about 338,000 temporary foreign workers in Canada, compared with about 110,000 ten years ago.

In justifying the moratorium, Minister Kenny said it was made in response to serious allegations of abuse by employers that ESDC had been made aware of recently. It also followed the release of a report by the C.D. Howe Institute that the increase in temporary foreign workers had led to higher joblessness in B.C. and Alberta, particularly among young workers. The Minister’s response reminds me of the character Captain Renault in the movie classic, Casablanca. When asked why he was shutting down Rick’s cafe, he disingenuously exclaimed, “I'm shocked, shocked to find that gambling is going on in here!,” as a worker from the cafe’s casino hands him money.

For years Minister Kenny has been leading the efforts of the government in cultivating its name among various community groups. The temporary foreign worker program has had a significant impact on both the Filipino and South Asian communities, as they are the major source countries for temporary foreign workers. The program has been a boon for many small business owners, as well as large corporations. The critics have warned of abuses with the program for several years.

Instead of increasing wages to attract local workers for lower skilled jobs, businesses have been able to hire foreign workers, keeping wage rates lower.  In the case of higher-skilled jobs, easier access to foreign workers has taken the incentive away from retraining Canadian workers to fill job positions; even though part of the LMO process involves an assessment of whether the employer has made or will make reasonable efforts to hire or train Canadians and permanent residents.

Over a year ago two local unions challenged a decision to grant LMOs to HD Mining to hire several hundred foreign miners to work at its northeast BC coal mine. The company won the case. Part of its proposal was that it would eventually train Canadian miners to do long-wall mining, a technique used only in a few mines in Canada. A year has passed and it is reported that the company has yet to start training the different technique to Canadian miners.

There are many political issues at play with the temporary foreign worker program. How much money should the government spend on retraining Canadians and permanent residents? How much should businesses be responsible for retraining and reeducation? Will Canada lose an economic competitive edge with other countries that use temporary workers? Do benefits such as employment insurance and social assistance create a disincentive for Canadians to relocate to find work? How much should the government spend to police the program, to curtail abuses? Will recent restrictions on parental sponsorship reduce the pool of potential workers for lower-skilled jobs, such as food services?

The program effects the workers coming to Canada. Should they receive a right to acquire permanent residence regardless of the skills they provide to Canada? Some economic libertarians and social activists suggest an “open border” policy, allowing the marketplace to determine who gets to stay in Canada. Would that mean no restrictions on access to social benefits?

Despite the moratorium, the temporary foreign worker program is still open to employers in other work sectors. The government is toughening enforcement, as with most other areas of immigration and citizenship. Employers will continue to seek foreign workers as long as the wage savings outweigh the added administrative costs of hiring those workers. The proposed Express Entry program starting in 2015 will make it easier for employers to acquire higher-skilled workers, but won’t help with the lower-skilled worker market. Politicians will continue to change the program, hoping to bolster their standing amongst potential voters in various communities for the next election in 2015, making it harder for some businesses to plan.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Floated policy highlights spousal sponsorship challenges

The current government has implemented changes to immigration rules for several years, in all categories of immigration, to address several of its concerns. The first concerns the ability of immigrants to adapt to the economy and their ability to contribute to society. The second is to crack down on fraud in obtaining permanent immigrant status and ultimately citizenship.

For the most part, the changes related to adaptability have focused on economic immigrants, but has included changes to sponsoring parents and grandparents. However, several weeks ago the Toronto Star reported the immigration department was thinking of requiring sponsored spouses to meet language and other requirements. If carried out, this would be the most dramatic change to spousal sponsorship since the category was formally started in 1962. Earlier rules had expressly exempted spouses from literacy tests.

This alarmed a number of groups and arose after the Immigration Minister, Chris Alexander, reportedly raised the issues at public meetings earlier this year. Critics suggested the idea would prevent many spouses, particularly from non-English and non-French-speaking countries, from qualifying under family sponsorship. They also suggested the government was thinking about requiring sponsors to meet minimum income requirements to sponsor their spouses. The government was quick to respond to the criticism. The Minister’s spokesperson, Alexis Pavlich, deflected the issue by saying the issues were raised by stakeholders as meetings and did not mean that it would become government policy.

Since 1962 citizens and permanent residents have had a right to sponsor their spouses to the country. Following a court ruling the rules were amended in early 1984 to prevent “immigration marriages” by excluding spouses who did not intend on living permanently with their sponsor. The current rule requires spouses, common-law partners and conjugal partners to prove their relationship is genuine and was not entered into primarily for the purpose of acquiring any immigration status.

While immigration officers are trained to spot fraudulent marriages, the decision-making process can appear subjective. It is difficult to determine what a person is thinking by objectively viewing their actions and statements. As a further deterrence, when the current Act was started in 2002, a rule was added (Regulation 117(9)(b)) to prevent a sponsor from sponsoring a new spouse while they still were responsible (currently for three years) for a previous one. Some persons had abused the system by sponsoring a spouse, obtaining a divorce within a few years and remarrying another person to sponsor. A few cases involved serial sponsors, involving more than two immigration marriages in a row.

To deter immigrants who deceive their sponsor and terminate the relationship soon after coming to Canada, the rules were changed in 2012 (Regulation 130(3)) to bar a recent immigrant from sponsoring a new spouse, common-law partner or conjugal partner for five years after getting their permanent status. The consequences can be harsh for a person whose previous relationship breaks down for legitimate reasons and wants to start a new relationship with another immigrant.

There is nothing guaranteed about sponsoring a spouse or other partners. Red flags are raised when the parties to a relationship appear incompatible due to age, education, race or religion. Arranged marriages are looked at to see if they fit within customary norms. The sponsorship process requires the immigrant applicant to complete a questionnaire about their relationship. If the written application doesn’t address potential concerns the applicant will be called to an interview, where their answers will be compared with the written application.

If refused, the sponsor may appeal the decision to the Immigration and Refugee Board. This does not apply to refusals of applications made within Canada. New evidence can be submitted to the board. Other witnesses to the relationship may testify. The Border Agency may investigate by visiting the sponsor’s home. Credibility is a primary issue. False statements, whether regarding employment, education, family relationships or other matters, may affect a decision. They might also lead to criminal charges for sponsors. The Border Agency is also seeking removal orders against permanent residents under the current law for making misrepresentations in subsequent sponsorships.

De Cervantes, the Spanish author of Don Quixote, is quoted as saying “Forewarned, forearmed; to be prepared is half the victory.” Anyone contemplating a relationship with a potential immigrant should be aware of the responsibilities and obligations of sponsoring that person. In order to avoid a delayed application or having to appeal a refusal, they should arm themselves with knowledge of how to prove it is a genuine relationship and to deal with any potential matter an immigration officer may be concerned about. Inadequate information can result in an uninformed response. Since the onus is always on the applicant to prove they qualify for immigration, an officer will not be faulted if the information is not provided.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Visiting Canada – dealing with the challenges in coming

In recent years millions of persons come to visit Canada. According to estimates of the Canadian Tourism Commission, in 2012 there were over 16 million overnight arrivals to Canada, of which nearly 12 million were from the United States. The second largest source of overnight arrivals was the United Kingdom, with 600,000 arrivals. Next was France with about 421,000. India was listed seventh, with 171,000 overnight arrivals. Included in the mixture are temporary residents who stay to work or attend school. While many are allowed into Canada, some are refused entry when they arrive, while many others are refused temporary resident visas they are required to have before they arrive here.

The immigration regulations set out rules on how people may apply to come to Canada, depending on what their intention is. The first distinction is a list of visa-exempt countries, whose citizens do not have to apply for a temporary resident visa before coming to Canada. The list of visa-exempt countries changes from time to time, depending upon a variety of factors, including whether or not certain foreign nationals are abusing the privilege of entering Canada by overstaying their visits. At present the visa-exempt list includes about 45 countries, primarily in Europe and including the United States, Australia and New Zealand. India was on the list until it was dropped in October, 1981, where it has remained ever since.

The temporary resident visa requirement creates an additional burden for potential visitors. Time and money has to be spent to complete application forms, gather supporting documents and to file the application. Depending on where the person applies, the process can be done within a week or can take several weeks.

Once an applicant has gathered information, completed the necessary forms and submitted them with the required processing fee, the application is reviewed by an officer who decides the application. Depending where a person applies, the process may require a personal interview. In the past decade, as government has worked to reduce its costs, more applications are decided without an interview. That means an applicant has to present all the best possible evidence to support their application in writing.

When deciding an application, a visa officer considers whether or not the applicant meets the requirements to apply and is not inadmissible. Persons may be inadmissible for a variety of reasons, including having a criminal record or serious health issues. The principle test applied to all applicants for a temporary visa is whether or not the applicant intends to remain in Canada temporarily (Immigration and Refugee Protection Act, para.20(1)(b)). If an officer believes a person may want to remain in Canada indefinitely, the application will be refused.

There are a variety of factors an officer may look at. None of the factors are set out in the rules, nor will you find them in any instruction manual for officers or in the guidebooks the provided on the immigration website. Typically, an officer is concerned with any evidence that would show the applicant will return to their home country, rather than stay in Canada. Does the person have a job? What assets, including real property do they have in the home country? Do they have immediately family members in the home country? What family members do they have in Canada? What is the reason for their visit? Do they have the means to support themselves for their expected stay?

If refused, it is usually done with a short cursory letter, with little explanation on it. Many failed applicants complain about not knowing why they were refused. The only way to get a detailed response is to apply to obtain a copy of the visa officer’s file.

Remedies against refused applications are limited. There is no formal right to have the decision reconsidered, though that may occur. The only legal remedy is to apply for judicial review in Federal Court in Canada. That means hiring a lawyer in Canada, a costly or impractical matter for most applicants. The Federal Court’s powers of review are limited, as a judge looking at the case decides only if the decision was unreasonable based on the information provided by the applicant. If the applicant failed to provide sufficient information, an officer may not be faulted on their conclusion.

An applicant can always reapply, with more information to address the issues that concerned the visa officer. The best remedy to be prepared to deal with the matter at the start by becoming informed about what is needed. That may involve seeking professional help with counsel experienced in these issues.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.